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Risk assessment of dams - Aligning engineering and legal principles | Ryan singh | YouTubeToText
YouTube Transcript: Risk assessment of dams - Aligning engineering and legal principles
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The discussion clarifies the legal concept of "reasonably practicable" under Australian Work Health and Safety law, emphasizing that it is a distinct legal test, not to be confused with engineering-derived concepts like ALARP or risk tolerability, which are tools for decision-making but not legal benchmarks.
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Excellent. So thanks thanks for joining us.
us.
>> Thank you.
>> So you've been quite involved uh
engaging with the engineering field. You
had a presentation with Engineers
Australia for example and you've
collaborated on this paper. So why you
as an industry lawyer why are you
choosing to engage in this discussion to
co-write a paper with us and really try
and speak to engineers?
>> Um probably a couple of reasons. I've
I've I've been writing about um the
problems with safety management from a
legal risk management perspective for a
long time now. The um the fact that our
documented systems are too bureaucratic,
they're not workable, the fact that our
safety metrics are unhelpful to
understand safety risks. So, I've always
had an interest in trying to understand
how can we better align what we do in
safety management in in the broad sense
to help to manage legal risk. Um so
that's always been an interest but a few
years ago and this really sort of
sparked me into this area. There was um
a series of papers and articles and
books that sort of came out and said the
WHS legislation has come into effect. It
introduces this so-called new test of so
far as is reasonably practicable. It is
fundamentally different from the old
test of as low as reasonably practicable
and we need to approach all of this
completely differently.
um which I thought was just it was
wrong. That's wrong. It's factually
wrong. It's not what has occurred. Um I
found it very misleading and I found it
creating a lot of confusion. And the
more I got involved in those conversations.
conversations.
I came to realize how much confusion
there actually was um within an
engineering community about this test of
reasonably practicable and what it
means. So that's where the interest has
come from
>> and that part of you doing that review
and research did you find the driver for
that confusion from the engineering
field by
>> No I didn't find the driver as such um but
but
there was certainly I think a
misconception that around a couple of
things ideas around things like a LAR
>> being some sort of legal test which it's
not um tolerability
again being some sort of legal test
which certainly in an Australian context
it isn't um and the idea of um
acceptability of risk somehow again
being a legal test or a legal boundary
um which again certainly in the context
of Australian legislation it's not
>> all right thanks um so in simple terms
what does reasonably practical mean
under Australian work health and safety
law and why is it such a central idea
that's applicable to dam owners.
>> Well, reasonably practicable and I I'm
going to I need to make the point
because this is where we get confused.
The the legally defined term in work
health and safety legislation in
Australia. Um and that would include the
Victorian occupational safety and health
legislation. Um and noting that we're in
New Zealand as well, the New Zealand
work health and safety legislation. The
defined term is reasonably practicable.
And um people often think the defined
term is as low as reasonably practicable
or so far as is reasonably practicable
and as low as or so far as as simply the
precursors to the word that that the
definition is reasonably practical. Um
Um
and there's two parts to it. So in in
layman's or paraphrasing if you like the
definition of reasonably practicable
goes to what an organization knows or
ought to know about a risk um sorry
about a hazard. So what can cause harm
the risks represented by that hazard you
know how likely is it what are the
consequences going to be and what the
organization knows or ought to know
about the controls to mitigate eliminate
or mitigate those hazards. Um and then
there's a balancing exercise where we
have to understand what's the
availability and suitability of those
controls and underpinning it all there
is a cost test which talks about the
cost. Um you don't have to implement
something if the cost is grossly
disproportionate to the risk. Now you
won't find cases that talk about cost.
It just doesn't come up
>> in the cases. So that's that's kind of a
paraphrasing of the definition in the
legislation. In practical terms, when
we're having arguments in court, when
we're in prosecutions particularly and
we're having arguments about what's
reasonably practicable, what we are
talking about is whether the
organization has got proper systems to
manage the hazards in the business. And
proper systems is really about do your
processes align with the regulations, do
they align with codes of practice, do
they align with standards, those sorts
of things.
And and that's kind of the easy part of
the equation. Most large sophisticated organizations
organizations
can more or less point to that proper
system. The challenge is what the courts
describe as adequate supervision. Um and
in the cases that talk about adequate
supervision, they're not just talking
about what supervisors do. They're
talking about whole of organizational
assurance. So how do we know that our
proper systems are implemented and effective?
effective?
So if we take a really simple approach
and we say
um we we are going to use risk m we're
going to do risk assessments and our
tool for doing risk assessments is we're
going to use a 5x5 risk matrix. So as an
organization if you rely on that kind of
um risk assessment approach what
evidence do you actually have in the
organization that that approach is being
done properly it's being complied with
properly each time and it's actually
effective to identify and manage the risks
risks
and you know the sorts of things we see
that undermine those kinds of processes
and it's not just that process I'm not
picking on that it's all sorts of processes
processes
um the sort of blatant copy and paste of
risk assessments that occurs. Um so
straight away if if we're copying and
pasting from one risk assessment into another
another
>> that immediately calls into question the
efficacy of of what we've produced.
>> Yeah. Okay. Um just come back to you
mentioned cost
>> and that review of cost and you said it
hasn't really come up. Is that because
the cases are decided much earlier than
that or is it found that the discussion
of cost or the deliberation of cost when
when something has occurred is not defensible.
defensible.
>> So the couple of reasons one there's a
very pragmatic reason 97% looking at the
last numbers from safe work Australia
97% of occupational or work health and
safety prosecutions end up in a guilty plea.
plea.
>> So we're not having arguments about
anything. I've just pleaded guilty and
I'm trying to reduce my penalty. >> Okay.
>> Okay.
>> But the more the more real the more um
um pertinent I guess answer to that
question is that most prosecutions for
health and safety involve a departure
from an organization's policies or procedures.
procedures. >> Okay?
>> Okay?
>> So we say here's our policy and
procedure for doing this work. That
procedure hasn't been followed and
incidents occurred. Um, and so you c you
can't argue that cost is grossly
disproportionate if you've already said
we're going to do it. >> Okay.
>> Okay.
>> So procedure says we're going to do X,
we didn't do X. Well, you can't then
turn around and say, well, we didn't do
it because it was too expensive.
>> Right. Okay.
>> Yeah. So it's very practical in that sense.
sense.
>> Yeah. Okay. And that discussion about
gross dispro proportionality, would it
ever be defensible to try and quantify
uh say life savings verse the cost of a
control that would eliminate or mitigate
a risk?
>> Yeah, I I think it would. I I think um
again it's really hard to say because
it's never really been tested in terms
of what grossly disproportionate it
looks like. Um and often because the
remedies that would have prevented an
incident are normally not very expensive
very often. But but that would certainly
be a criteria. I think
>> that would be a valid criteria to say
well the likelihood of somebody dying
>> was X. >> Yeah.
>> Yeah.
>> And that's you know was so remote that
the the cost didn't justify it. Yeah.
>> Again, I think it's worth considering in
that kind of conversation that when you
talk about prosecutions, we're never
having finely balanced arguments. >> Yeah.
>> Yeah.
>> So, it's never sort of if you've got
grossly negligent up one end and
completely safe at the other. And
somewhere in the middle, there's this
fine tipping point.
>> Prosecutions are never at the tipping point.
point.
>> Okay? They always happen when it's a a
clear almost always happened I'll say
where it's a pretty clear it's pretty
clear that there were things that could
have been done to manage the risk better.
better.
>> Right. Okay. >> Yeah.
>> Yeah.
>> Um so many engineers use the notion or
concept of ALAP and risk tolerability
thresholds as a benchmark for safety
decisions. So can you explain if ALAP
and risk tolerability especially as
outlined in the ankled risk assessment
guidelines are legal concepts in
Australia or bed down from legal
concepts and how these terms are related
to the obligations under work health and
safety legislation. >> Okay.
>> Okay.
>> So when you look at tolerability and
ALAP they're largely drawn from guidance
material from the UK HSSE. So I think
that's generally understood.
they um
they are not
legal concepts in in the sense of a a
prosecution. So a prosecutor will never
allege that um a risk wasn't tolerable
or they will never allege they will
never allege the risk wasn't a
argument or the way the prosecution
frames their charges is to say that the
organization failed to do everything
reasonably practical because it did or
didn't do x y and zed and then they'll
set out the particulars of the charge.
So, we're never having arguments about a
we're having arguments about reasonably practicable
practicable
and we're never having arguments about tolerability.
tolerability.
Um, and those terms simply don't come up
in prosecutions under safety legislation
in Australia. And the only time I've
seen tolerability
come up is where the court has said the
question of whether or not an
organization decides something is
tolerable is not an answer to the
question of whether they've done
everything reasonably practical.
>> Completely separate.
>> Yeah. Yeah. Now if we go if you go back
a step um there's a case called Slivac
and Lergie which is I think a 2006 I
want to say I could be wrong high court
decision and Justice Mary Gordron in
that decision talks about reasonably
practicable being a uh a judgment call
or a balancing exercise where you have
to balance the time cost and trouble of
managing a risk against the risk of that
that thing materializing.
And I think in that sense what
tolerability is, it's just a tool to
help make the judgment call, right? Um
it's a almost a yeah, it's a it's a
common language that people can get
around and say, "We're going to make
this judgment call. Is it tolerable?"
But I think you have to recognize that
just because something's tolerable
doesn't mean you've done everything
reasonably practicable. Um and it's also
I think important to understand that and
we we we run into this same dilemma when
we talk about low risk and high risk. So
we say oh if something's low risk it
means we've done everything reasonably
practical. That's not true. It can still
be low risk and you haven't done
everything reasonably practical to
manage it because there might be things
that you could do relative to the level
of risk that should be done and reduce
it even further.
And and the one that annoys me even more
is this idea that because something's
high risk, we haven't done everything
reasonably practical. And and again,
that that's simply not true. Um
and I think that leads to very
misleading risk assessments.
>> So the reality is most of our risk
assessments should identify a lot of
what we do as being high risk because
it's it is high risk because if the
controls fail, somebody's going to die.
That doesn't mean that I haven't done
everything reasonably practicable to
manage that risk. So, you know, for most
people, the biggest risk I face in a in
a day is to jump in their car and go
driving. And there's a whole lot of
things I can do to manage the risk of
driving. I've got a license. I've got an
ANCAP, fivestar ancap rated car. I wear
my seat belt. I'm not drunk. I'm not
distracted. All of that. Um, it's still
a high-risisk activity because if
something goes wrong, I could die. Mhm.
>> So I think we tend to mislead in our
risk assessments
>> because we want to show everything as
being low risk when that's just not right.
right.
>> Yeah. We should really try and separate
the concept of say some perception of
level of risk and what we've actually
done to manage the risk is really the message
message
>> I think. Yes. I I think so. I think
that's right. I think you can you can
have done everything that you would be
expected to do to manage a risk and it
would still be a high risk. So in uh in
the risk assessment guidelines uh the
results are a quantified risk profile uh
within a tolerability framework. Y
>> and often uh practitioners or decision
makers would point to that and say my
list my risks are or the risk is tolerable
tolerable
>> or the risk of the dam is a lot. >> Yep.
>> Yep.
>> Does that make sense within uh the
legislative framework? um not not from
not when you're talking about reasonably
practical. So what you've done there is
you've you've quantified the risk and
you've you've you've put it into a risk
matrix or a risk hierarchy somewhere and
low medium high or however you quantify
it. Um but the quant the reasonably
practicable assessment is not about the
level of risk. It's about what you have
done to manage it and what else could
have been done to manage it.
>> So what physical controls or processes
or systems you put in place rather than
a quantified expression of the risk of
the asset.
>> Yeah. So, so, so the the courts would
never look at your risk assessment and
go, "Oh, you've you've identified this
risk as a 1 in 10,000year event,"
>> for example, and say, "Therefore,
because you've quantified it that way,
>> therefore, you've done everything
reasonably practical to manage the risk."
risk." >> Yeah,
>> Yeah,
>> that's not the discussion. The
discussion is what's what could you have
done to mitigate that risk? And it and
it it never it never exists in a band.
>> So a lot of the the the material that we
see that that has risk assessment sort
of puts things into a band.
>> When we're in court, we're not arguing
about a band, we're arguing about a line.
line.
>> So you've either it's either reasonably
practicable or it's not.
>> Right. Okay.
>> Um so a very simple case. Um and on risk
assessment, I was looking at a decision
the other day. That's a bit of an older
decision and the prosecution had alleged
that a worker should have done or there
should have been a documented risk
assessment for a particular task. And
the court said, well, no, that's not
reasonably practicable because if you
had have done a documented risk
assessment, you would not have come up
with anything different than what was
identified anyway. The workers
understood and identified the risk. They
knew what the risk was. Formally
documenting it doesn't make any
difference. Okay. So, a formal risk
assessment is not a prerequisite either
to then demonstrating that you've done
everything reasonably practical.
>> No. Um, it's an interesting dilemma. The
the regulations, the WHS regulations
require describe a formal risk
assessment process. They say you must
this is what you have to consider and
when you have to consider it and how you
have to consider it.
But it doesn't say and you have to
document it
>> and it doesn't say and when you document
it it has to look like this and it has
to go from high to low.
>> That's that's all things that we've put
in place to try and um corral I guess
that obligation.
>> Yeah. Okay. Going back to one of the
points you mentioned about um HSC from
the UK. >> Yeah.
>> Yeah.
>> And a lot of the technical guidance
especially around ALA and tolerability
being based upon their work. Can you
just provide some context about HSSE and
how relevant or not non-relevant it is
for Australians? HSC UK material
>> it's never quoted in um
>> or never might be putting it to I but if
you if I look at the cases since WHS
legislation's been in place and you look
at all the prosecutions that have been
run they don't refer back to
no one's arguing about the principles or
the guidance coming out of the HSSE UK
>> not relevant it's yeah it's not anything
you would argue about I would never
at sentencing submissions the other day
and I wouldn't even think to turn my
mind to what the HSC UK might say about
risk assessment.
>> Yeah. And
>> we've got our own codes of practice and
guidance material. That's what we ought
to be relying on.
>> Yeah. And to confirm their role as a
regulator in the UK. >> Yes.
>> Yes.
>> Yeah. Yeah.
Um so given that ALAP and risk
tolerability are not legal concepts why
should it matter to dam owners that they
are basing their decisions on these
terms and concepts especially if the
decisions they've made have resulted in
no rather there's been no dam failures
while they've been basing their
decisions on on those concepts. I look
to take a step back. I'm I'm not
suggesting for a moment that the primary
reason that we do safety management is
for legal risk management. >> Okay?
>> Okay?
>> Right? We do safety management to keep
people safe, people in communities safe.
But one of the very real consequences of
a failure to get safety management right
is legal consequences. And the legal
consequences have been moving very
rapidly up. So why should I, you know,
why should I, as a duty holder, let's
put it even more broadly, why as I,
should I, as a duty holder under health
and safety legislation be concerned
about whether our processes to manage
risk are aligned with the legislation
because it creates legal exposure. That
would be, you know, the simplest answer
to it. Yeah.
>> And I think if history teaches us
nothing else, um we need to be
extraordinarily careful about taking
comfort from the fact that nothing has
gone wrong. Um many of the worst
industrial accidents on the planet in
the last 30 years have been preceded by
long periods of nothing going wrong.
Mhm. Um, and what's what is interesting
is that when something eventually does
go wrong and the inquiries go back and
look at the systems in place leading up
to that almost universally that those
systems are found to be fundamentally flawed.
flawed.
So I think that's where the concern the
concern ought ought to be.
>> Yeah. And um in your presentation
that you did with Engineers Australia, I
recall as well you said whatever
processes a PCB puts in place to manage
their risks is their own business, but
they should consider well you I think
you're imploring people to at least
consider their their legal obligations
as well.
>> Yeah. Look, if if and again, you take
and this is this is part of the the
wrigle room that happens around here. If
we're in a courtroom arguing about
what's reasonably practicable, um
um
that's in the legislation, that's how we
deal with it, right? If you if you set
up your own policies and procedures and
you define reasonably practicable
reasonably practicable different or you
you substitute it with or you use
tolerability, again, that's your business.
business.
>> You you use whatever language you like
to describe whatever you do. if
something goes wrong,
um you won't be held accountable against
the standard that you've described in
your system. You're held accountable
against what the legislation says >> and
>> and
um and and this is kind of a
frustration. So, everybody talks about
legal compliance as a minimum
requirement, okay, which I think really
misunderstands legal compliance, but
leave that to one side.
I I would have thought that if legal
compliance really was the minimum expectation,
expectation,
then you would just take those
definitions and say this is how this is
the foundation we're going to use
>> to build our framework to manage this. >> Yeah.
>> Yeah.
>> And then because anything over and above
the legal minimum has got to be better.
But we don't do that. What we do is we create
create
um we create
phrases like tolerability which often
get applied in practice in ways that are
not consistent.
>> Yeah. And another example would be ALAB
>> from some concept or some acronym of
reasonably practical.
>> Yeah. And you know to be fair um the
ALAB concept has been drawn from the
early sort of 1930s 1940s UK decisions
and that's where our legislation has
evolved from. So there's a there is a
pedigree that comes through that history >> but
>> but
um the notion of AAR
that that is is brought out of that that
case law h has its own nuances and
meaning that's been ascribed to it over
the years. Whereas in the health and
safety legislation, we have a very
prescriptive definition of what we have
to consider
>> for reasonably practicable. And that may
or may not be picked up in ALAP
>> depending on who's talking about it.
>> Yeah. And when you say ALAP has having a
pedigree from case law, that term ALAP
though is used as an acronym and not
anything else. Yeah. It is actually as
low as reasonably practical and you're
using as an acronym.
>> Yeah. Well, it it it seems to I get my
nouns and verbs mixed up, so I
apologize. But, you know, you look at
people look at and say that risk is ALA. >> Yes.
>> Yes.
>> Um, and that's not
that's not the model of the WHS
legislation. You have to manage your
risks as low as reasonably practicable,
>> which is not the same thing as saying
there is a point where they are
>> as low as reasonably practicable. Yeah,
>> fundamentally if for no other reason
that that the the second that you plot
that risk on some sort of matrix or
wherever you plot it
>> 5 minutes later that risk profile has moved.
moved. >> Yeah.
>> Yeah.
>> Because people have done something
different. So it's the the the problem
with the in part
um with the engineering
concept around tolerability and um and
ALAP is they tend to be fixed and static.
static. >> Yeah.
>> Yeah.
>> Whereas the risk management obligations
are ongoing and live and proactive.
>> Yeah. Okay.
>> Uh moving on. So one of the points you
previously raised is that courts don't
think in terms of risk probabilities. No.
No.
>> In terms of foreseeability, I think
that's one of the points you brought up
earlier. So, how do courts actually
approach this idea when assessing
whether someone has met their duty
regarding foreseeability?
>> All right. So, when
when
two things so there's two there's two
different type types of things to
consider. One is an inquiry like
coroner's inquest or royal commission
>> and one is a prosecution. Now, in a in a
in a prosecution,
the courts aren't making inquiries. So,
the prosecutor, I think I touched on
this before, the prosecutor comes to the
court with a charge and particulars, and
they say, "This company didn't do
everything reasonably practicable, and
here's what it was possible for them to
do that they didn't do, and we're having
an argument about whether that is
practicable or not."
>> All right. So, and and foreseeability
feeds into that question of whether it
was reasonably practical to do
something. So, to give an example, we
had a prosecution the other day where I
did the sentencing submissions. Um, it
was a piece of equipment that came loose
during transport. The evidence was that
my client um on one or two occasions
what so this this piece of equipment had
restraining devices on it
>> and my client was aware that on one or
two occasions
their clients had removed this equipment
without all the restraining equipment in place
place
>> and that was enough for the court to
accept that it was foreseeable
that clients might return the equipment
without those things in place and that
made it reasonably practicable to put
additional engineering controls to stop
the equipment coming loose. >> Yeah.
>> Yeah.
>> So that's for that's that's that
foreseeability question in the context
of prosecutions.
>> Yeah. Okay.
>> Um and there's lots of things that feed
into foreseeability. Um
you know so and and there's kind of this
what what's what do you know or ought
you have known? Um so for example if
there's a code of practice that applies
to a risk it's generally taken that you
should have known about that risk so
that risk is foreseeable. >> Okay.
>> Okay.
>> Deal with it in that context.
>> Yeah. So then comparing that then with
quantified probabilities. A risk
assessment perhaps should focus on
identifying foreseeable hazards rather
than trying to quantify the probability
of that hazard.
>> Um I that's a it's an interesting
question. I I don't know what the
practical difference would be between a quantifiable
quantifiable
hazard and foreseeability.
>> The fact that you can quantify it means
it's foreseeable, >> right?
>> right?
>> So if if you can quantify it, that means
you know about it and you have some
sense of how it might play out,
>> which means that you then need
>> I know about this. I then need to turn
my mind to
>> what do I need to do to eliminate or
mitigate that concern.
>> Yeah. So the example would be
completing a risk assessment for a dam.
Uh we know that one of the hazards is
large uh inflows from rainfall that will
result in a flood.
>> Um often risk assessments or risk
analysis and risk assessments focus on
quantifying the probability of a of a
flood event that would result say over topping.
topping. >> Yes.
>> Yes.
>> It plots below a certain point or it
doesn't uh come up as say the most
probable hazard. Yep.
>> And at the end of it, that hazard or the
treatment of the hazard rather than
>> perhaps you it sounds like you're
suggesting then the focus rather should
be on have we done everything to manage
the risk posed by these
>> inflows. So you if you run sort of
through the reasonably practicable
occasion, we know that there's a hazard
um posed by rainfall events. >> Yeah.
>> Yeah.
>> Okay. Um and
so you say well
you you build a dam to a certain level
and you say we know we know that this
dam is good for um a rainfall event of x
intensity. Okay sure then the next
question becomes okay um what would we
have to do to mitigate a rainfall event
of y intensity? So the y intensity is
less less common.
Um and and that's what in a
in a WHS prosecution, the prosecutor
would allege that um
it was reasonably practicable to um take
further measures to prevent against a
greater rainfall event. And the measures
that you should have undertaken were and
I don't know what the technical things
would be, but A B CD.
>> Sure. And then we're just having an
argument about whether given the risk
and the likelihood of that occurring,
>> it would have been reasonable for you to
have done those additional measures. >> Yeah.
>> Yeah.
>> And that will be um you know there'll be
interesting questions about um
you know whether whether the technology
existed at the time or whether
technologies changed. If technologies
changed, could that technology have been
incorporated into the dam? Um that's
that's probably a case. if it went to
trial where you would have an argument
about cost. >> Yeah.
>> Yeah.
>> So this is a one in 500 year event.
>> The cost is x y and zed. Um but that
evidence would be tested.
>> So you would have your engineers saying
well this is a one in 500 year event da
da da. And then the prosecution would
call expert witnesses to say well we've
done our modeling and we think it's a
one in 250 year event. Or someone would
say because of climate change and again
it's a timing issue. climate change
impacts over the last 10 years have
meant that that risk has shifted.
>> You might find that one of the
allegations against a company in those
circumstances, particularly in an
inquiry, maybe not a prosecution, but in
an inquiry, would be to say, well, that
that dam was built in 1991.
>> The climate modeling has changed since
then. How often or when did you go back
and revisit that damn design to take
account of climate modeling population
change because you the risk there's a
population downstream when you built the dam
dam
>> that's changed over 15 years do we go
back and revisit the dam design
those are all the sorts of factors
>> and sorry just to to go on that
>> I think this is the bit that that we
often miss in the application of
engineering risk assessments is they're
fixed at a point in time. >> Mhm.
>> Mhm.
>> Whereas the reasonably practical
requires that ongoing proactive
coming back to it.
>> Yeah. Okay. Probably one point that I
could make clear as well often the
controls are physically constrained and
apparent. So another example we've come
across as reviewers there's a dam um
there's a failure mechanism called
internal erosion where effectively
seepage washes out material and it keeps
progressing and all of a sudden you
don't have a damn wall of a pipe
connecting downstream to stream. Yeah.
Um we've seen risk assessments done
saying the risk or the likelihood of
piping was one in 100 based on the very
simp flight approach which for dams is
ridiculously high. would consider that
like if you're talking about one in 100
that's very high. Um however within the
owner's 5x5 matrix that was considered a
rare risk or some very very uh yeah high
high low likelihood because it's 100 for
health and safety incidents
>> high consequence.
We were reviewing it and said okay you
you've got this risk assessment for this
piping failure. Um the ways to address
it though are wellknown
uh not novel um and and can be carried out.
out. >> Yep.
>> Yep.
>> So we we argued the risk assessment
should been focused on identifying that
it could occur and then addressing it
rather than spending time and cost
deliberating about what the probability was
was
>> and then whether or not something should
be done about it.
I I think I think that makes sense and
again from a um a legal risk management
perspective it would be a case of the
the things you've pointed out it's a
known risk with known controls. Um so
the only question we're really arguing
about is whether the time trouble and
effort to address that risk
>> is outweighed by the potential
likelihood and consequence of that risk. >> Yeah.
>> Yeah.
>> And that that would be all we're arguing
about. Yeah.
>> Um and the fact that an organization may
have quantified the risk as one in 100,
>> which I agree probably sounds high to
me. Um you know, everybody talks about
driving as being this critical risk in
their business. I think the likelihood
of being caught in a car accident is
probably high or less than one in 100.
>> But anyway, that's why the buy. um where
you've plotted it on your risk matrix
will not
you know necessarily be determinative of
any of those questions.
>> Yeah, you mentioned that balancing just
then about cost time effort versus the benefit
benefit
>> and um I think we talked about grossly
distortion before as engineers
>> we're almost uh compelled to try and
quantify all aspects or try to quantify
all aspects of those things and then
balance that.
>> Sure. Is that sound decision making?
>> Yeah, I think it is. Okay.
>> Um, but it's not determinative. >> Yeah.
>> Yeah.
>> Um, it's it it gives you a I think it g
it's a it's a stepping off point, not a
finishing point in my view.
>> It's an input into a decision.
>> I think so. Yeah. I think that
>> it's not the decision.
>> That's right.
>> Um, and you have to remember, and this
is this is terribly unfair,
>> but you have to remember that we are
arguing about this after the event. >> Yeah.
>> Yeah.
And after the event, everybody will be
able to point to all of the things that
made it perfectly clear why this was
going to happen. So, you know, I think I
think you do need to er on the side of
conservatism in risk.
>> Um simply, you know, that's not a legal
issue. It's just a fact of life.
>> Uh so you've been involved in inquiries
and prosecutions. From your experience,
what do courts or investigators actually
exam examine when something goes wrong?
And how could this inform dam owners?
And again, what going back to that ALAP
intolerability? Would an argument like
my my my risk profile was tolerable or
was ALAP carry any legal weight? um
um
your your your risk profile and your
conversations about tolerability and
AARP will
form part of the evidentary mix
in that balancing exercise between time,
effort and um time, effort and resources
versus what's the risk we're dealing
with. Um now
the the exposure
the exposure or part of the the exposure
in that conversation
is that your risk decision making
processes will be heavily scrutinized. >> Okay.
>> Okay. >> Um
>> Um
so the the decision making that led you
to that point will be heavily
scrutinized. I think the best example of
that if people are interested is there's
the presidential inquiry into the Deep
Water Horizon disaster. That's page 125
of the presidential inquiry and on there
there is a table of decisions and it
talks about um what the decision was,
whether there was a less risky option available,
available,
>> whether the riskier decision saved time
or money, and who was the decision
maker. Yeah.
>> And that's I I think if you look at a
table like that, you get a sense of how
your risk decisions get scrutinized when
things go badly wrong. >> Okay.
>> Okay.
>> What was the decision? What were the
inputs? What was considered? What wasn't
considered? Um
even even things. So there's a the
prosecution of um a fellow called Mr.
Gibson in New Zealand who was the chief
executive officer of the Port of
Oakland. He was prosecuted for breaches
of due diligence. Now that case is going
to the high court so we'll have to see
what falls out. But one of the things
that was looked at in that case just to
give you a sense of how this happens was
there was a I think it was the health
safety something committee was the most
senior sort of oversight safety
committee of the port and there's
conversations in that decision about who
attended how long they attended for how
long the meetings ran for to form a view
that that committee couldn't do what it
was supposed to do given the attendance
and the time frame. Yeah,
>> if we're in a major inquiry,
that same sort of exercise will be done
over your risk assessment processes.
>> When were the meetings held? Who
attended them? How long did they run
for? Who had input? What was the expert
advice? They they'll come under a pretty
close level of of scrutiny.
>> Yeah. Okay. Back to that decision-
making then. If your so and what you
mentioned earlier about risk assessments
being perhaps a starting point or an
input if your sole decision is my risk
profile is below a certain point or plots
plots
>> in a certain area I don't have to do
anything y
>> that's where you come and start
potentially I look it's it's hard to say
because from a very practical what you
that's what you're doing there is taking
a very pragmatic approach what you're
saying is
>> we think this is
>> so low that nothing's going to happen so
we don't have to worry about it Yeah,
>> that's not the application of reasonably
predictable in a technical sense,
>> but it is in a kind of a practical sense
to say that's low enough not to worry
about it. Now, again, from a technical
legal perspective, could we look at that
and say there were things you could have
done that would have mitigated that risk
further? Yes. >> Mhm.
>> Mhm.
>> And I think in most Yeah, I think that
would be problematic from a legal risk
management perspective. Um, but again, I
understand why you would do that.
>> And I guess from a very practical
perspective, if you're going to take
that sort of risk, do it at the low end
of the of the risk profile.
>> When you say when you take the risk, as
in the organization on the risk of not
doing anything based on a risk profile. >> Yeah.
>> Yeah.
>> If that's what if if you're comfortable
not to do that. And I I
>> would probably accept that.
>> Yeah. um so long as you're putting the
right level of attention into the risks
that are problematic. >> Yeah.
>> Yeah.
>> Um but I think the real um
um
like for an organization I think one of
the real risk questions is how much time
and effort do you want to put into
verifying and double-checking that risk
assessment? Y
>> cuz as you say if if there's a if
there's a line below which we don't have
to do anything more the risk is that
those risks
tend to get pushed towards that line so
we don't have to do anything more
>> and that's one of the dangers in that
that kind of a model.
>> Yeah. you mentioned as well we're
looking at this from when especially
when you come into it after the event
has happened
>> if a risk is low especially for the uh
types of assets we're talking about it
means the probabilities
are quite low y
>> but as you say the event has actually happened
happened
>> yeah so so yeah that's I mean again that's
that's
probabilities one part of the equation
consequence is the other so yeah
>> so balancing that's important
>> yeah uh so if you were advising a dam
dam owner today, what would you say they
should focus on to ensure their
decisions on dam safety are legally defensible?
defensible?
>> Um, the one thing I always tell
organizations, do you have proper
systems to manage the risks and are they
implemented and effective?
>> And that's when ultimately if something
goes wrong, that's the conversation
we're having. what what did you have in
place uh to to do the risk assessments
to um make the decisions about what's an
acceptable level of risk about how the
risks are going to be controlled? Were
those systems being complied with um
again if you look at the the page 125
from the presidential report the one of
the criticisms was these riskier
decisions were being made without any
formal risk assessment process being
applied. So, how confident are we that
our risk assessment processes are being
properly applied? Um, how much assurance
do we have that they're effective, that
the controls are effective? Continually
revisiting that loop.
>> Yeah. And would you have any advice
regarding the types of outcomes of a
risk assessment? I think you mentioned
>> uh is everything being done to manage
the risk? >> Yeah.
>> Yeah.
>> Versus say quantifying risk. Is there
some type of uh preferable outcome of
risk assessments you would advise? No, I
don't think so. It's um from a legal
risk management point of view, the
starting the starting point is have you
complied with your own process? >> Okay.
>> Okay.
>> And then that process produces an
outcome. So
>> again, and not I'm not saying this is
inappropriate in any way, shape or form,
but it produces a quantifiable
um list of risks and where they sit.
Some of which might require more action,
some of which don't. um you will
inevitably be applying the
organization's own risk appetite to that.
that. >> Yeah.
>> Yeah.
>> So even if you even if you said let's
take the technical definition of
reasonably practicable and replace tolerability
tolerability
you would still bring the organi the
organization's risk appetite would still
interpret reasonably practicable.
>> But so that you've followed your process
you've produced an outcome. The question
then becomes this is kind of the risk
question or a a secondary level of risk
question is
how much of that outcome do we want to
subject to scrutiny right
>> do we want do we want a further review
done of that risk outcome if we get a
further review done do we want a further
review so you know checkers checking the checkers
checkers
>> I think that's the real question about
how where do you draw the line that you
get assurance
>> that what you've done is an effective outcome
outcome
>> right so really about do you have the
right systems and processes in place?
Are they being implemented? And then say
for a particular type of hazard, does it
align with the organizationwide
policy, systems, processes? Yeah.
>> As well.
>> Yes, I think that is right.
>> Yeah. Okay. Um, so the paper we we wrote
together calls for ankle to realign its
guidance with Australian legal
principles. From your perspective, what
would that alignment look like? I think
for me the the key issue is to recognize
that it is technical guidance not legal advice.
advice. >> Um
>> Um
and it's technical gu so if we if you
think of it so reasonably practical is
this life cycle ongoing proactive
issue the as I and I'm not as you know
I'm not an engineer but the guidance
that we're talking about is technical
design guidance. So I think there needs
to be much more overt recognition that
it is design guidance and design
>> risk assessment technical risk assessment.
assessment.
>> Yes. For design correct
>> for for existing for design and existing
>> D. So I'm sorry so being a bit shorthand
there but some overt recognition of what
it is.
>> Yeah. and that it it is that it is it is
not guidance on the overall um
reasonably practical life cycle for one
of the better word.
>> Um it's kind of a point in time
assessment. Um and
and
not legal advice.
>> Yeah. So don't make bones or don't make
any presumption or appearances that you
it's it's legal guidance.
>> No, I I I don't think you can say if you
follow what you can might be able to say
is if you follow this guidance and you
do it properly, this will deliver the
the best kind of risk assessment of a
dam you can have. >> Sure.
>> Sure. >> Okay.
>> Okay.
>> But to then say because we've done the
best risk assessment of a dam, we've
done we've done everything reasonably practical.
practical.
>> Yeah. They're not the same things. >> Yeah.
>> Yeah.
>> And I I think that distinction needs to
be fairly clearly drawn.
>> Um I think the best idea for writers of
technical guidance material is to make
no observations or commentary about
the legal impacts of that at all.
>> Yeah. And so you mentioned the having
say the best risk assessment not being
the same as doing everything reasonably
practical. I think we talked about the
practicalities of risk assessments are
very time and cost intensive and
decisions are made on them regarding
whether something should be done. >> Yep.
>> Yep.
>> I don't know if you any personal views
that that sort of assessment then
especially if we know that they are
being made for risk management decisions
really should be secondary then to
assessments on
what controls should be put in place for
these risks. So I think if you were to
do both assessments or both types of
assessments, they would stem from what
can go wrong. >> Yep.
>> Yep.
>> Risk the type of risk assessments in the
guideline would then focus on
quantifying those potential consequences
and likelihood with what we can do about
those hazards being almost a tertiary
consideration in that process rather
than being the primary focus of those
risk assessments.
>> I think I think the risk assessments and
you used the term before create the
decision point.
>> Yeah. So, we've got something that can
cause harm. We've assessed the potential
impact of that harm and we've looked at
all the ways we can control it. And
having done that exercise, we think this
is a suitable way to manage it.
>> Then that that's the technical input
that requires a decision that says yes,
that's as far as we're going to go. >> Yeah.
>> Yeah.
>> Um or no, there's other things we think
we can do.
>> Right. That's that's and that's the the
risk assessment feeds into the
reasonably practical equation because it
informs us. It tells us what we know or
what we ought to know about the hazard,
about the risk and about the controls.
more practical uh example of that is
we've seen five5 matrices and damp
failure almost invariably plots in the
most extreme end with very high
consequences but very very low
likelihoods and often those types of
frameworks have that as just monitor
because because the likelihood is so
low. Um so the the process doesn't even
allow or require people to consider what
can be done to manage the risks despite
as as as we said despite the risks or
what what can be done to manage risk
being quite like the the piping uh
fellow I was talking I
>> I think I think what's particularly well
the problem the fundamental problem I
have with that and this is I'm not
mathematics so I'm not talking from a
mathematical perspective
>> but there's two parts parts to that
equation, likelihood and consequence. >> Yeah.
>> Yeah.
>> And if you only base your decision-
making on one of those criteria, >> then
>> then
I think that's really problematic. >> Mhm.
>> Mhm. >> Um
>> Um
if you're saying it's really really low
and even if it does go wrong, the worst
case scenario is no harm, that yes,
fine. Forget and monitor that.
>> Yeah. If you're saying look this is
really really low but if it does go
wrong a thousand people could be killed >> y
>> y
>> then I think that warrants a
conversation about can we do more to
manage it
>> so that's the asset or the that risk
assessment level we've seen frameworks
set up where if it plots in that region
of very low likelihood but very high consequences
consequences
it doesn't drive
uh the need
>> I think that's a mistake. >> Yeah.
>> Yeah.
>> I think it should at least be be closed
out with a conversation
>> about is there more we can do.
>> Yeah. And again, we've seen
internal processes for risk assessments
where the first step is to quantify both
the potential consequences and
likelihood of a hazard
>> uh rather than assessing what can be
done to manage that hazard.
Is that a mistake? Again, especially
considering the amount of uh cost and
time that goes into quantified risk
assessment. We just see a lot of effort
being expended on on that and that being
the focus rather than saying, "Hey, we
know that there's this risk of piping,
for example. We know what we can do
about it. Let's not worry about
Um
I don't know if mistake is putting it
too harshly. >> Okay.
>> Okay.
>> Um but
again sort of coming back to where the
discussion has been if if something so
what what you're doing is you're you're
you are effectively
staking your ground
on it is such a low likelihood it's not
going to occur. Therefore, we don't need
to think about it anymore.
>> If it does occur,
>> all of the conversation will be about
what could have been done
>> to mitig mitigate that risk further. >> Yeah.
>> Yeah.
>> Or that absolutely that conversation
will happen.
So I would have thought that any risk in
an organization
at warrants at least some level of
consideration of is there something more
we could do to mitigate this. Um and if
in fact if you look at it in the
consequence in the context of principal
hazard management plans in the mining industry
industry >> y
>> y
>> which overtly call out
>> for you have to identify you know what
you're going to do to control it
>> and you also have to overtly say what
things you decided not to do.
>> Mhm. So yeah, I I I think there is a
well I think there is a place for that.
If an organization wants to draw a line
in the sand and say below this line,
we're not going to have that conversation.
conversation.
>> That is the risk appetite of the
organization. You can call it tolerable,
you can call it acceptable, you call it
whatever you like,
>> but the fact that you've called it
something, you've drawn the line and
you've put something below the line is
not determinative of of anything that
will happen in legal proceedings. So
again that tolerability is not the
anything to do with the risk of the
asset or the hazard but really around
the appetite of the owner of that risk.
They're saying for them it's tolerable.
>> And I and I think most most formal risk
assessment processes
>> have necessarily have
an inbuilt bias in terms of the risk
appetite of the owner.
>> Ultimately that's what it is.
>> Yeah. Um, and if if you are not if
you're not going through the exercise of
saying, "Is there anything more that we
could do to manage this risk?"
>> You're really not stress testing your
risk appetite. >> Yeah.
>> Yeah.
>> You're just you're setting a line and
that's that's what it is.
>> Yeah. I don't know if it surprised you,
we see that though being done more and
more often and often those who are
carrying out risk assessments,
especially the owner's representative
not at least being aware or conscious
that that discussion about tolerability
or acceptability
is as more the subject of the owner's
>> risk appetite rather I' I've heard risk
assessment uh risk managers saying
this risk is or the risk of the dam is
tolerable because it's here rather than
perhaps saying we consider this risk
tolerable for our organization.
>> Yeah. and for the it'll be for the same
reasons. Yeah,
>> I mean there's a a common parlance in in
safety management. We talk about the
efficiency thoroughess trade-off, >> right?
>> right?
>> What you're describing there, it very
much falls into that basket of the
efficiency thoroughness trade-off.
>> It's it is very efficient to set a
threshold around likelihood,
do your calculations, and if it drops
under that threshold, not worry about it
anymore. That's a very efficient way to
deal with risk when you're dealing with
lots and lots of risks that you're
trying to manage. Um,
and and and so that's that is you'd like
to say it's conscious decision making,
but I think very often it's it's
invisible decision- making because we
set the threshold
>> and we think we think that that
threshold means something more than it does.
does. >> Yeah.
>> Yeah.
>> And it certainly doesn't mean that
you've the fact that it drops below a
threshold based on likelihood. No matter
how large or large or small, I don't
know the correct mathematical way of
putting it. The number is is not the
same thing as saying that you've done
everything reasonably practicable to
manage that risk.
>> Yeah. You talk about putting away how
important that is. I I I think we talked
about before. I believe that acronym
ALAP has probably caused a lot more harm
>> than than the time it says reasonable
because you can put
>> you can use that noun in ways you
couldn't use that for the full term.
>> Yeah. Uh similarly, I I've heard again tolerability
tolerability
being used to describe the risk of the
dam on people rather than the risk of
the dam that the owner is willing to bear,
bear, >> right?
>> right?
>> Especially given the subjects of our
risk assessments, we it's it's the
consequence is loss of life primarily. Yeah.
Yeah.
>> And um
again I I see it when you put it within
the framework of that tolerability
framework or the risk within that
tolerability framework the discussions
and at least the perception of those
carrying out the risk assessments and
decision makers is it's tolerable to
>> us no it's tolerable to the the risk of
the dam is tolerable
>> to impact this number of people given
this likelihood rather than we as an organization
organization
>> consider this risk tolerable for us to
not do anymore. >> Yep.
>> Yep.
>> And I I do see that that use of the word
tolerable being more of the latter
rather the former and the latter.
>> And so the the the follow on of that
conversation from a legal risk
management perspective is what a what
more could you have done? >> Yeah.
>> Yeah.
>> So that is where it will be and then it
will be is is that reasonably
practicable and the reasonably
practicable is the proportionate conversation.
conversation.
>> Yeah. you know, given if you say, you
know, impacts on a thousand lives and we
think the risk is so low, so we're going
to tolerate that risk as a damn owner,
the court's perspective might look a bit
different with the benefit of hindsight,
particularly saying, well, hang on,
here's a few things you could have done
>> that would have either prevented or
mitigated that.
>> Um, and the cost is not grossly disproportionate
disproportionate
>> to even your own accepted level of risk.
>> So therefore, you should have done it.
>> Yeah. the fact that it's sat here in
your risk matrix is not the answer to
the the question.
>> I think you you really said earlier
having a a technically good risk
assessment um and having a risk profile
sitting somewhere doesn't mean you've
done everything reasonably practical.
>> It does not. Yeah. >> Um
>> Um
as a followup then why do you why is it
so important why do you think it's so
important for technical guidance to be
legally coherent not just technically
sound? I think that goes back to the
point you mentioned about not proposing
to be a legal guidance.
I think we want it to be legally
part of the risk is if it's not legally
coherent and we have incidents and those
guidelines are found not to be suitable
in the context of legal risk management
that the the guidelines lose
credibility. Mhm.
>> And I think that's problematic. We need
we need credible technical guidance that
we can point to um as industry to say we
relied on the technical guidance um
in part to help manage our legal risk.
So I think I think the credibility of
the guidance is important. Um
and and I also think and this
conversation has sort of borne it out
and what I referred to as the earlier
conversations about this distinction
between so far as and as low as
reasonably practicable. Um
at the moment it strikes me as a very
confused conversation and I don't think
that's helpful for anybody. Yeah. So if
we can get a more coherent conversation,
if everyone's on the same page
understanding what
at least if we're all on the same page
and saying this is what our legal
obligations look like,
>> you you can as an organization you can
take legal risk. You can say we we are
making a decision to to have that
threshold and to put things below that.
We understand that's technically not
what reasonably practicable means, but
we're going to wear that risk of
efficiency, thorough trade-off. Um,
and you're making more informed
decisions. I think at the moment people
are making decisions thinking they're
managing legal risk when in truth I I
don't think they are.
>> Yeah. So really, it's again about
aligning the previous questions about
aligning uh guidance with legal
obligations. It's not throwing out more
terms, but it's understanding the
concepts and terms that are already
there perhaps and then building upon
building upon that
>> as a starting point.
>> I I and I think it would be really
helpful to get rid of some terms.
>> I think it would be helpful to get rid
of a lap. I think it would be helpful to
get rid of tolerability. Um I think it
would be helpful to get rid of
acceptable levels of risk except in
Queensland mining legislation where they
use that phrase. So again um and we
haven't we haven't examined this but you
have to realize that I am talking today
about legal risk in a reasonably narrow
context of work health and safety legislation.
legislation.
>> There's insurance insurance legislation.
There's general principles of negligence
and common law lawsuits. There's
environmental legislation which we
haven't touched on. Each of which set
slightly different tests. They're all
very similar but slightly different
tests. Um, and I think understanding
what those tests are without creating
um, a language that purports to meet
those tests when it doesn't would be helpful.
helpful.
>> Yeah. Who would be the appropriate
entity to define a tolerability
threshold or framework for an
organization or for a dam owner?
>> The organization. >> Yeah.
>> Yeah.
>> It's the organization's risk appetite
>> that should be defining it. I mean you
know even so the health and safety
legislation which is the framework for
protecting people
>> does not define a tolerability or any
other threshold.
>> It sets the test
>> which is reasonably practicable. >> Yeah.
>> Yeah.
>> A test that's completely separate really
from any level of quantified level of risk.
risk. >> Yes.
>> Yes. >> Yeah.
>> Yeah.
>> Yeah. I mean the risk assessment process
is an important part of the reasonably practicable
practicable
>> equation but it's not the end of the conversation.
conversation. >> Y
>> Y
yeah the first tolerability framework o
by ankle was in 1994 uh with a statement
that it was proposed in lie of any
frameworks or thresholds regarding
safety to the general public imposed by damps. Is that is that correct?
damps. Is that is that correct? >> No. No, I wouldn't have thought so. Um,
>> No. No, I wouldn't have thought so. Um, occupational health and safety
occupational health and safety legislation has always um created
legislation has always um created obligations on um
obligations on um in the old language employers
in the old language employers um to ensure the health and safety of
um to ensure the health and safety of workers and others. Um there have been
workers and others. Um there have been um in Victoria in particular, there was
um in Victoria in particular, there was a spate of cases
a spate of cases um where um members of the public were
um where um members of the public were injured walking past building sites and
injured walking past building sites and things had fallen and collapsed. So
things had fallen and collapsed. So failures of the the building premises.
failures of the the building premises. So that's always been the case. There
So that's always been the case. There was a case in Esperence in Western
was a case in Esperence in Western Australia many many many years ago well
Australia many many many years ago well before 1994 where a toddler came into a
before 1994 where a toddler came into a um auto parts store and pulled a rack of
um auto parts store and pulled a rack of bullbars down on herself and was killed.
bullbars down on herself and was killed. >> Right.
>> Right. >> So the the protection of the public
>> So the the protection of the public arising out of the the conduct of
arising out of the the conduct of business and undertaking.
business and undertaking. That's that's always been a
That's that's always been a characteristic of health and safety
characteristic of health and safety legislation.
legislation. Um, and before we wrap up, what key
Um, and before we wrap up, what key messages would you want dam
messages would you want dam professionals, including owners,
professionals, including owners, regulators, consultants, designers, to
regulators, consultants, designers, to take away about their duties under work
take away about their duties under work health safety legislation?
health safety legislation? Um,
Um, I guess
I guess I guess there's three well
I guess there's three well there's three probably four things. One
there's three probably four things. One is
is two things two things with the first one
two things two things with the first one divided into three parts and one sec.
divided into three parts and one sec. First one the first part is to
First one the first part is to understand um what the duty requirements
understand um what the duty requirements under the legislation are. So the the
under the legislation are. So the the person conducting the business or
person conducting the business or undertaking the the corporate entity if
undertaking the the corporate entity if you like has to do everything reasonably
you like has to do everything reasonably practicable to ensure the safety of
practicable to ensure the safety of workers and others officers of that
workers and others officers of that organization who are the most senior
organization who are the most senior people in the organization.
people in the organization. They have to exercise due diligence to
They have to exercise due diligence to make sure the organization is meeting
make sure the organization is meeting its obligations and everybody else.
its obligations and everybody else. We're all workers and we need to take
We're all workers and we need to take reasonable care for our own safety and
reasonable care for our own safety and the safety of others. And um a large
the safety of others. And um a large part of a significant part of that
part of a significant part of that obligation to take reasonable care um is
obligation to take reasonable care um is to ensure that we comply the policies,
to ensure that we comply the policies, procedures and processes of the
procedures and processes of the organization.
organization. So I I would like organizations to
So I I would like organizations to understand that. Um,
understand that. Um, but fundamentally
but fundamentally I think the key thing organizations need
I think the key thing organizations need to pay attention to and I've come I've
to pay attention to and I've come I've said it a few times but it's again it's
said it a few times but it's again it's always where we end up is whether or to
always where we end up is whether or to what extent the organization has got
what extent the organization has got proper systems to manage the hazards in
proper systems to manage the hazards in the business and what assurance do we
the business and what assurance do we have that those systems are implemented
have that those systems are implemented and effective and I think if we can
and effective and I think if we can direct a lot of our energy to
direct a lot of our energy to um
um understanding those two issues I I I
understanding those two issues I I I think that helps us shift the dial quite
think that helps us shift the dial quite a bit in terms of looking after people.
a bit in terms of looking after people. >> Yeah. And last question, what advice
>> Yeah. And last question, what advice would you give engineers who sometimes
would you give engineers who sometimes feel that law and engineering speak
feel that law and engineering speak different languages?
different languages? >> Um they do speak different languages. I
>> Um they do speak different languages. I don't think that's um something that can
don't think that's um something that can be ignored.
be ignored. And I think what we really need is um a
And I think what we really need is um a much more um multid-disciplinary
much more um multid-disciplinary approach to these issues of workplace
approach to these issues of workplace health and safety. Um and for better or
health and safety. Um and for better or worse that's been compounded but with
worse that's been compounded but with the introduction of psychosocial
the introduction of psychosocial regulations.
regulations. >> Um which I think is clearly so
>> Um which I think is clearly so historically I think many people have
historically I think many people have seen health and safety as a quasi
seen health and safety as a quasi engineering discipline.
engineering discipline. um which I think is wrong. Um and a lot
um which I think is wrong. Um and a lot of the great work that's been done I
of the great work that's been done I mean sorry let me go back a step I think
mean sorry let me go back a step I think technical change and engineering
technical change and engineering expertise has been the primary driver
expertise has been the primary driver for reducing injury and fatality rates
for reducing injury and fatality rates around the world. I don't doubt that for
around the world. I don't doubt that for a moment. Um, some of the really
a moment. Um, some of the really interesting shifts in safety have been
interesting shifts in safety have been led by people like anthropologists and
led by people like anthropologists and sociologists and psychologists. Um, and
sociologists and psychologists. Um, and I think that has an increasingly
I think that has an increasingly important part to play. Um, and as I
important part to play. Um, and as I touched on a moment ago, the
touched on a moment ago, the introduction of psychosocial risk
introduction of psychosocial risk regulations has um
regulations has um has has
has has fundamentally um weaken is not the right
fundamentally um weaken is not the right word, but it has shown how far health
word, but it has shown how far health and safety has moved away from an
and safety has moved away from an engineering discipline into other
engineering discipline into other sciences. Um and I think we do need to
sciences. Um and I think we do need to spend a lot more time thinking about
spend a lot more time thinking about collaborative approaches across um
collaborative approaches across um multiple disciplines
multiple disciplines >> to help it work better.
>> to help it work better. >> Yeah. And really from the sounds of
>> Yeah. And really from the sounds of summarize the points you made the
summarize the points you made the engineering being one input into the
engineering being one input into the overall decision about what's reasonably
overall decision about what's reasonably impractable to manage y a risk.
impractable to manage y a risk. >> Yeah.
>> Yeah. >> Um yes. Um I I've I've been fascinated
>> Um yes. Um I I've I've been fascinated for a long time about the number of
for a long time about the number of engineers
engineers who purport to give legal advice about
who purport to give legal advice about the management of health and safety
the management of health and safety risk.
risk. >> Um
>> Um a lot of which is um questionable at
a lot of which is um questionable at best.
best. >> Okay.
>> Okay. >> I I don't spend a lot of my time talking
>> I I don't spend a lot of my time talking to people about how to design and build
to people about how to design and build safe bridges.
safe bridges. >> That's not what I do. M um I find it
>> That's not what I do. M um I find it extraordinary that engineers
extraordinary that engineers feel that um they have the expertise to
feel that um they have the expertise to to start providing legal advice about
to start providing legal advice about the management of risk. Engineers have
the management of risk. Engineers have an extraordinarily important role about
an extraordinarily important role about the technical management of risk within
the technical management of risk within their discipline.
their discipline. >> Um and that has got to continue and and
>> Um and that has got to continue and and um it's very important. Um
um it's very important. Um but if the development of health and
but if the development of health and safety over the last decade has taught
safety over the last decade has taught us anything, it's the importance of a
us anything, it's the importance of a multi multi-disiplinary approach with
multi multi-disiplinary approach with people understanding
people understanding what their technical expertise is and
what their technical expertise is and very much staying in their lanes with a
very much staying in their lanes with a lot of collaboration.
lot of collaboration. >> Yeah. So perhaps how a risk should be
>> Yeah. So perhaps how a risk should be managed rather than if a risk should be
managed rather than if a risk should be managed is really the focus.
managed is really the focus. >> That's Yeah, that would be an
>> That's Yeah, that would be an interesting dichotomy. Yeah, I think
interesting dichotomy. Yeah, I think that's right. All right. Well, thanks
that's right. All right. Well, thanks for your time.
for your time. >> My pleasure.
>> My pleasure. >> Thank you.
>> Thank you. >> Pleasure.
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